Balkinization: Our Toxic Constitution

Comments:

Sandy:

1) Legislation through regulation in violation of Article I is the result of a judicial dictatorship which you support and nothing to do with a "toxic Constitution" which does not permit the Executive to legislate.

2) The existance of a transition period has nothing to do with the enactment of this rule. The agency could just as easily enacted the rule by election day.

# posted by

Bart DePalma : 10:53 PM

I don't often agree with Bart, but in this case we do. What Bush is doing now, like what Clinton did in his own lame duck days, is a disgraceful usurpation of legislative power by the executive. Decisions of such magnitude should be made only by the people's elected and accountable representatives in Congress, not by top-down administrative agencies.

I differ with Bart in believing that the transition period does matter. A lame duck has no accountability and thus has every incentive to go for broke.

# posted by

Essayist-Laywer : 11:31 PM

At least this particular flaw could be easily fixed by legislation.

# posted by

Mark Field : 11:33 PM

Mr. DePalma raises two important points that would bear a civil discussion (and not the usual insult and counterinsult): 1) What is being described in the article is indeed exemplary of the "modern" administrative state. I put the word in scare quotes only because that state has been with us at least for some 130 years, since the Interstate Commerce Commission in 1887. But it is clear, as Ted Lowi argued in his cri de coeur The End of Liberalism, that the administrative state does indeed represent a massive shift of power from the legislative to the executive branch. Where I disagree with Mr. DePalms is his ascipription of that to "a judicial dictatorship," though one could certainly speak of "judicial acquiesence" to what an earlier discredited generation of judges called "delegation run riot." We live every single day with the result of the demise of the so-called "delegation doctrine," nowhere more so than with regard to the flailings about (some of which I support) of the Federal Reserve and the Treasury. And Jack's defense of the extended transition is, of course, based on the reality, which means that it will never ever go away, of the modern administrative state.

And I, of course, agree with Mr. DePalma's second point, which I thought I made in my initial posting. That was the reason I gave for my slow-but-sure drift toward a preference for parliamentarianism (which, of course, has its own problems) over presidentialism. I do believe, though, that the extended transition multiplies the most unattractive aspects of presidentialism, with almost no saving grace.

# posted by

Sandy Levinson : 11:35 PM

I offered my own comment before Enlightened Layperson and Mark Field had posted their comments. I want to make clear that they certainly fall within my notion of "civil discussion."

# posted by

Sandy Levinson : 11:37 PM

Perhaps the action being taken by George W's lame duckness is conservative political strategy, to make life for difficult for President Elect Obama's incoming administration. Neal Gabler has an interesting OpEd in today's LATimes:

http://www.latimes.com/news/opinion/commentary/la-oe-gabler30-2008nov30,0,1009632.story

titled "The GOP's McCarthy gene. Think Goldwater is the father of consevatism? Think again." Here's the closing paragraph:

"And that is also why the Republican Party, despite the recent failure of McCarthyism, is likely to keep moving rightward, appeasing its more extreme elements and stoking their grievances for some time to come. There may be assorted intellectuals and ideologues in the party, maybe even a few centrists, but there is no longer an intellectual or even ideological wing. The party belongs to McCarthy and his heirs -- Rush Limbaugh, Sean Hannity, Bill O'Reilly and Palin. It's in the genes."

I trust this is not too uncivil for Sandy.

# posted by

Shag from Brookline : 7:19 AM

Professor Levinson:

First, kudos on preemptively rescuing this thread from the torrent of abuse into which it would otherwise have devolved. (in fairness, however, it is not a question of insult and counterinsult- the insults go almost exclusively one way).

Second, it seems to me that the facts laid out in your post boil down to this. The Bush Administration is accused of using the broad (I would suggest overbroad) delegation of authority from Congress in a more cautious manner than Barack Obama would prefer. This leaves the incoming administration with two choices- begin the rulemaking process anew or ask Congress to pass a new law. So what?

Perhaps the Bush rule leaves workers unnecessarily exposed to toxic chemicals. Perhaps the rulemaking process takes too long. Perhaps there should be a moratorium on new rules for some period before the end of an outgoing administration’s term (although this would most likely have little effect on the phenomenon of a last minute push to get new rules finalized). Perhaps, but none of this seems to have much, if anything, to do with the fundamental problems you seem to have with the Constitution.

If your view is that the United States would be better off with a parliamentary system than a presidential one, you should support that view by comparing the overall costs and benefits of the two systems. Most readers of this blog are intelligent enough to understand that any system of government has costs and benefits (hence Churchill’s observation that democracy is the worst form of government except for all the others). I assume that you would at least consider the possibility that parliamentary systems have weaknesses that presidential systems do not. For example, if the United States had a parliamentary system, we might not have been able to save the parliamentary democracies of Europe from Nazi Germany and the Soviet Union.

In any event, picking out isolated events and ascribing them, somewhat randomly, to purported defects in the Constitution is neither a logical nor a persuasive way of making your case.

# posted by

mls : 9:22 AM

"And that is also why the Republican Party, despite the recent failure of McCarthyism, is likely to keep moving rightward,"

I think there's a certain hilarity to any claim that the Bush administration represented a move Rightward for the Republican party. There's a reason Bush couldn't bear to call himself a "conservative", without hyphenating the term in a fashion which confirmed liberal libels against conservatism.

True, institutional 'conservatives' took him to their bosom, and made his sins their own, but Bush represented a defeat for conservatism, not it's victory, as did McCain's securing the nomination after a history of sticking it to conservatives.

# posted by

Brett : 9:37 AM

In any event, picking out isolated events and ascribing them, somewhat randomly, to purported defects in the Constitution is neither a logical nor a persuasive way of making your case.

I agree with mls here. I think most of what Sandy ascribes to defects in the Constitution could be reasonably remedied via the legislature. I don't think professor Levinson is sufficiently crediting the limitations of 'rule-making' to reign in human defects.

I disagree with mls here: (in fairness, however, it is not a question of insult and counterinsult- the insults go almost exclusively one way)

In my view, calling a falsehood a falsehood does not constitute an insult. Same with a pattern of falsehoods.

# posted by

mattski : 10:10 AM

Mls wrote:

I assume that you would at least consider the possibility that parliamentary systems have weaknesses that presidential systems do not. For example, if the United States had a parliamentary system, we might not have been able to save the parliamentary democracies of Europe from Nazi Germany and the Soviet Union.

MLS,

Could you please elaborate and give a few examples on how and when the American system of government saved the parliamentery democracies from Nazi Germany and Stalin's Soviet Union?

The U.S. was only a marginal player in the outcome of WWII in Europe contrary to the propaganda fostered by Hollywood and "American Exceptionalism" at that time.

# posted by

BOB EDER : 10:30 AM

Sandy:

Politically, I agree that the New Deal Court (as did the New Deal Congress) "acquiesced" to the Executive on the subject of the regulatory state.

However, legally, an unelected court arbitrarily rewrote the Constitution to accommodate FDR. I would suggest that this is the epitome of a dictatorship - the unelected and unaccountable dictating the law.

Frankly, I do not see how an unelected and nearly unaccountable bureaucracy assuming the plenary legislative role of Congress for the express purpose of limiting the liberty of the citizenry in ways that would never muster a majority of our elected representatives is anything other than mischief whether this occurs at the beginning, middle or end of an administration.

The argument often posted here that an elected President "interfering" with the dictates of an unaccountable "career [fill in the blank] civil servant is somehow a threat to democracy never ceases to amaze.

# posted by

Bart DePalma : 10:35 AM

I would agree with Professor Levinson and maybe half-agree with Bart about what ails our system. Our Constitution was written in the 18th Century with an 18th Century executive in mind. Since then, the executive power of government -- all government everywhere, not just the US Federal Government -- has grown far beyond what anyone in the 18th Century could imagine. The huge administrative bureaucracy is an inevitable feature of modern government that is universal and by no means limited to the US Federal Government, but it is not something an 18th Century constitution written for an 18th Century executive handles very well.

Parliamentary systems have dealt with the growth in executive power by complete subordination of the executive to the legislature. Most US states have dealt with it by dividing the executive, i.e., by having many separate elective executive offices so that the Governor controls only part of the executive branch.

I will confess to not knowing enough about parliamentary government to even speculate how such a system would work in a country as large as the US. And I can think of any number of good reasons not to adopt a divided executive on the federal level.

So what does that leave? Ideally, a reassertion by Congress of its prerogatives, un-delegation of its powers, and better statutory constraint on the federal bureaucracy. But I'm not holding my breath. More realistically, something like Prof. Balkin proposes above, a ban on any new regulations between election and inauguration. That way at least the President or his party will have to answer at the polls for any unpopular regulations they may pass.

# posted by

Essayist-Laywer : 12:43 PM

Roberto- yeah, everything I know about WWII comes from watching the movie "Patton." Still, while I am aware of revisionist history suggesting that our intervention in WWII was unnecessary (ie, to protect our own vital interests), I am unfamiliar with the theory that we had only a "marginal" effect on the outcome of the war. The way I heard it, the USA played a pretty important role in keeping Britain armed and fed following the fall of France, not to mention in chasing Rommel out of North Africa, invading Sicily and Italy, D-Day, liberating France,winning the Battle of the Bulge, and, finally, accepting Jodl's surrender. I'm thinking that the folks in Dresden probably didn't see our role as "marginal" either.

Maybe you can enlighten us on the "real history" of WWII.

# posted by

mls : 1:51 PM

Contrary to the view expressed by Roberto Antonio Hussein Eder, I would say that while the intervention of the USA in WW1 might have been marginal (coming as late as it did in the conflict), the intervention of the Roosevelt Administration with lend lease, even before the declaration of war, was absolutely vital to the survival of the UK (which is why it was a primary war objective of Churchil). Without the survival of the UK as a point from which Russia could be supplied and as a launch platform for the invasion of Europe, then the 3rd Reich might still be ruling.

Incidentally, the Patton movie was re-run on cable this afternoon - as with most Hollywood productions it gives a very distorted picture of WW2. The Longest Day, or A Bridge too Far are better, but the "World at War" series is probably the best of the lot.

The problem of delegated legislation, is encountered just as much in parliamentary democracies as it is in the USA. The modern state needs to regulate in detail and there simply is no time to take the whole mass of detail on the floor of the chamber. So at the European Level we have Directives (primary) and Regulations (secondary) and at national level in the UK we have Acts of Parliament (primary) and Statutory Instruments (secondary). Regulations made by statutory instruments generally have to be laid before parliament and approved or negatived by an up or down vote. More commonly they may also be the subject of judicial review. EU legislation may also be judicially reviewed either directly in the ECJ or interpreted on a question of law from a national court.

If all the regulation had to be taken through the national or European legislatures, it would simply not be accomplished, which might be fine for those who wish to adulterate our food, pollute our rivers and streams, despoil our landscape (which is why big business seeks to subvert the regulatory process) or make off with our money in market manipulation.

# posted by

Mourad : 3:19 PM

MLS wrote:

I'm thinking that the folks in Dresden probably didn't see our role as "marginal" either.

Maybe you can enlighten us on the "real history" of WWII.

For one thing, MLS, the USAAF raid on Dresden in February 1945 killed approximately 60,000 souls, and according to some, had no valid military purpose. The same with the U.S. air raid on Hamburg. These are but two examples of American war crimes during WWII unrelated to preserving parlimentary governments.

It seems to me that most of the war's actions took place on the Eastern Front contrary to your assertions and did not involve US forces. The main battles were between the Nazis and the Soviets.

Looking at militaary build-up as evidence of U.S. involvement, by April of 1945, Britain had 2 million troops, the U.S. 3.5 million, the Nazis 6.1 million but the Soviets deployed 12 million, this according to historian Norman Davies in his No Simple Victory.

# posted by

BOB EDER : 3:47 PM

I'm with mls and Mourad on this. There's no doubt that the USSR did the majority of fighting and dying in WWII, but it doesn't follow that US participation was therefore "marginal". US industrial output was very important to the victory, and US troops certainly played a significant role, albeit a lesser one than Soviet troops.

# posted by

Mark Field : 4:41 PM

In the spirit of comity on this thread, I must agree with "Bart" that "[l]egislation through regulation in violation of Article I" is an evil indeed (the provenance of such alleged violations is of course open for debate). We should indeed decry violations of the Constitution whenever they occur, including violations of Article I. Whether the founders would have thought that direct legislation is indeed impractical for the bulk of what needs to be done WRT rule-making at the federal level is also an open question. The courts have struck a compromise, it seems, and have insisted that regulations, to withstand Constitutional scrutiny and the non-delegation principle, must be tied to specific legislation, and must implement that intent and stay within the ambit of the enabling legislation. Perhaps "Bart" can trot forth his favourite examples of the most egregious excesses he sees.....

That being said, I'd hope for "strict constructionists" and other federal minimalists such as "Bart" to also decry the abdication by Congress of the "power to declare war" which is a plenary and non-delegable duty of Congress (much as the legislative power is).

When I see that, I think I will recognise a faithfulness to Constitutional principles, and not to the exigencies of the circumstances.

Cheers,

# posted by

Arne Langsetmo : 6:22 PM

Mark Field wrote:

I'm with mls and Mourad on this. There's no doubt that the USSR did the majority of fighting and dying in WWII, but it doesn't follow that US participation was therefore "marginal". US industrial output was very important to the victory, and US troops certainly played a significant role, albeit a lesser one than Soviet troops.

I agree with parts but also disagree with others. I am not a historian but a lawyer, so for what it is worth, let me quote Norman Davies (Fellow of the British Academy, Fellow of the Royal Historical Society and professor emeritus at London University) in his No Simple Victory:

"The key reason why the Western input ws significantly smaller than generally supposed centres on timing, and in particular on the lateness of American engagement. . . It did not begin until January 1942, and it could not reach peak efficiency instantaneously. Hence, in the months when the Americans were still girding their loins, the Soviets were already racing towards a position of near-total dominance."

Now Davies does not make the Soviets the "good guys." He writes that they were even worse than the Germans in their gulags and how they treated civilians and overall in the brutality of their conduct of war. Because of the many war crimes, whether by the Americans, the British, the Soviets or the Nazis, Davies tries to demolish the Hollywood characterization of WWII as "the Good War."

Davies believes Americans tend to glorify the war and especially exaggerate their own part:

People forget. They are influenced by later developments. They tend to imagine that the USA was all powerful from the start. . . . American forces had not gained parity with the USSR by May 1945; and their actions were duly constrained. . . [It] was the Soviet Union, not the USA, which fought the final phase of the war as the strongest power in Europe. It was the Red Army which scored the most crushing victories over Nazi Germany, culminating in the Battle for Berlin. And it was Soviet Communism, not liberal democracy, that made the most striking advances.

Where I agree with Mark Field is that he says the US made a significant contribution. The loss of even one life is certainly significant. Nevertheless, I still argue based on Davies' figures and tables that considering the totality of the circumstances the US contribution in the European theatre was merely marginal.

# posted by

BOB EDER : 6:25 PM

MLS:

... the insults go almost exclusively one way

You'll pardon me if I think you an eedjit for characterising what has been going on in such a way.

The 'gentlemen' of the Confederate States pf America were reputed to be very polite. That, of course, was not the issue. Politeness has its place, but it is the gist of the dispute that is most important as to who are the "sinners" and who the "saints".

Cheers,

# posted by

Arne Langsetmo : 6:32 PM

"Bart" thinks that Dubya's a dictator!!!!:

However, legally, an unelected court arbitrarily rewrote the Constitution to accommodate FDR. I would suggest that this is the epitome of a dictatorship - the unelected and unaccountable dictating the law.

In Dubya's case, his friends in Congress acquiesced as well. I guess that's even more dictatorial. ;-)

Cheers,

# posted by

Arne Langsetmo : 6:37 PM

I said:

The courts have struck a compromise, it seems, and have insisted that regulations, to withstand Constitutional scrutiny and the non-delegation principle, must be tied to specific legislation, and must implement that intent and stay within the ambit of the enabling legislation. Perhaps "Bart" can trot forth his favourite examples of the most egregious excesses he sees.....

"Bart" said:

Frankly, I do not see how an unelected and nearly unaccountable bureaucracy assuming the plenary legislative role of Congress for the express purpose of limiting the liberty of the citizenry in ways that would never muster a majority of our elected representatives is anything other than mischief whether this occurs at the beginning, middle or end of an administration.

Is "Bart"'s real complaint here simply that the "citizenry" wouldn't approve of specific rules/legislation? That's an 'argument' perhaps, but only for those jurisdictions that allow for ballot initiative or direct democracy for teh passage of regulations/legaislation....

I'd point out that the point others have made, to the effect that the legislature is perfectly free on a majority vote to pass legislation voiding/rescinding any aberrant regulations, counters the 'argument' that legislative intent is stymied. Methinks that "Bart" is more concerned that his preferences are stymied....

Cheers,

# posted by

Arne Langsetmo : 6:51 PM

Roberto Antonio Hussein Eder:

Because of the many war crimes, whether by the Americans, the British, the Soviets or the Nazis, Davies tries to demolish the Hollywood characterization of WWII as "the Good War."

You're leaving out the Japanese. They were hardly blameless.

Davies believes Americans tend to glorify the war and especially exaggerate their own part:

While the role in the ET was less dispositive, the U.S. role in the PTO was quite more significant. To the extent that U.S operations in Africa and Italy, and in engaging Japan in the PTO kept Axis resources from helping the Nazis in the ET, the U.S. did play a significant role. Also, as pointed out, U.S. materiel and armament manufacture palyed quite a significant role.

That said, the Russians really did turn the tide against Germany early, and with the blood of some 20 million Russian lives lost.

That said, back to the topic of the post....

Cheers,

# posted by

Arne Langsetmo : 6:58 PM

Norman Davies' No Simple Victory is more tendentious revisionist polemic than genuine military history. He cherry picks secondary sources to support his conclusion that the USSR almost single handedly won WWII in the ETO.

Some of Davies' errors include:

1) The fact that the Soviets by far suffered the most military casualties of the Allies is not evidence of the proportion of their effort, but rather how badly the Germans were tactically defeating the Red Army until the 1942 Stalingrad counter offensive and then the difference between the Soviet and US/Brit way of war - the Soviets spent manpower to win while the US spent incredible amounts of ordinance.

2) Davies' comparison of the USSR deployment of 12 million men compared to 3.5 million Yanks and 2 million Brits is utterly misleading. In fact, the Soviets were able to deploy about 6 million frontline troops with the rest being support personnel. In contrast, Davies does not count the millions of Yanks supporting the ETO from overseas.

3) Davies ignores the enormous US/Brit equipment advantages over the Red Army. By the end of the war, the Allied Army was almost completely mechanized and fielded nearly twice the armor of the Red Army with 2-3 tanks in depots set to replace the line vehicles. The Allied air forces outnumbered the Russians by over 2-1.

4) The Russians had not strategically defeated the Germans prior to the Allies fully entering the war in 1944. The Germans deployed more men and equipment in 1944 after their reverses in Russia than at any time before. 40% of those forces were deployed in the West.

5) With no Russian help, the Allied strategic air offensives devastated Germany's transportation net and fuel production. This is what crippled Germany's ability to execute local offensives, not the loss of troops on the Russian front.

The fact is that we could not have won the war without the USSR and vis versa. If the United States had not entered the war, the vast majority of the troops stationed in the west would have moved east and stalemated the USSR. Without the USSR drawing most of the German troops out east, the Allied troops could not have obtained the local superiority to execute their amphibious invasions of Fortress Europa. It is nonsense to claim that one of the Allies won the war single handedly.

# posted by

Bart DePalma : 8:05 PM

Coming back to the "delegation" issue, I leave the assessment of the constitutionality of the US procedures to those more expert in US Constitutional law and the deficiencies inherent in working with an 18th century constitution in the 21st century, but in our parliamentary system much primary legislation delegates the power to make regulations to a secretary of state or other body.

Such powers are circumscribed by administrative law and most particularly by judicial review, so that the minister must not act ultra vires the enabling statute, he must act reasonably, taking into account all relevant matters and excluding all irrelevant matters, etc.

So I would disagree with Enlightened Layperson's observation that "parliamentary systems have dealt with the growth in executive power by complete subordination of the executive to the legislature.: one significant way in which executive power is constrained is through the process of judicial review of administrative action.

With the Courts now also able to quash secondary legislation for non-compliance with the human rights guarantees set out in the ECHR, a significant restraint on executive power results.

LSR Bart's strictures seem to be those of the ultra-right who would would like to emasculate the power of the state to regulate in the interests of public health, product safety, etc. Not for nothing did the Powell Memorandum speak of :-

"Current examples of the impotency of business, and of the near-contempt with which businessmen's views are held, are the stampedes by politicians to support almost any legislation related to "consumerism" or to the "environment."

"There should be no hesitation to attack the Naders, the Marcuses and others who openly seek destruction of the system. There should not be the slightest hesitation to press vigorously in all political arenas for support of the enterprise system. Nor should there be reluctance to penalize politically those who oppose it."

On what I have read of the "last minute regulation" effort of the Bush Administration, I suspect that in our system any such rules might be vulnerable to ceteriorari since the case could be made that the actions were not being taken in good faith but for an improper motive.

# posted by

Mourad : 3:33 AM

"On what I have read of the 'last minute regulation' effort of the Bush Administration, I suspect that in our system any such rules might be vulnerable to ceteriorari since the case could be made that the actions were not being taken in good faith but for an improper motive."

Mourad: Are you comparing the English system with the American system here? Does either system have a requirement of "good faith" but no "improper motive"? And judical review might be appropriate? Wouldn't this be the realm of the political? (When I think of "good faith" and "improper motive" I think of Bush v. Gore.)

# posted by

Shag from Brookline : 5:03 AM

This comment has been removed by the author.

# posted by

Mourad : 6:00 AM

We might even consider that the USSR started out on the other side, and became an ally only because of Hitler's betrayal.

Won the war? They helped start it.

# posted by

Brett : 7:45 AM

While we're at it, let's go back to Paris, 1919, and the steps taken back then (including by the U.S) that may have laid the groundwork for the rise of Hitler's Germany. (This also may have laid the groundwork for Iraq I and Iraq II.)

# posted by

Shag from Brookline : 8:03 AM

Mourad:

The theory behind the administrative state is that regulation of various activities of the citizenry is too large and complex for Congress to understand and requires the efforts of bureaucratic experts. Putting aside for the moment whether any bureaucracy has the expertise to regulate even a small part of the economy, this purpose can be achieved without an unconstitutional delegation of Congress' legislative power (and the Judiciary's power to interpret the law) to the Executive bureaucracy. Simply have the bureaucracy submit proposed regulations to the Congress for a vote and create specialized Article III courts to resolve disputes in each area of regulation.

The reality here is that a substantial number of the proposed regulations would and should fail in Congress. The administrative state is not so much about "expertise" as it is about expanding the power of government outside the accountability of the elected branches.

# posted by

Bart DePalma : 10:03 AM

Roberto: Where I agree with Mark Field is that he says the US made a significant contribution...Nevertheless, I still argue...the US contribution in the European theatre was merely marginal.

The reason for the vehemence of my countrymen is the term "marginal." You can't say that participation was significant, but marginal; the terms are nearly antonyms. That's why people are flying off the handle upthread to prove the significance of US participation in WWII.

Whether such participation was the direct result of a given government structure is another question entirely. Could a parliamentary system field any troops in its own defense? Clearly we have examples that they could and did.

Was the destroyers for bases agreement a natural outcome of a "superior" presidential system? Was the Lend-Lease Act--a decision vital to the Soviets' victory, by the way--a triumph of legislative or executive power?

# posted by

PMS_CC : 11:48 AM

For example, if the United States had a parliamentary system, we might not have been able to save the parliamentary democracies of Europe from Nazi Germany and the Soviet Union.

# posted by mls : 9:22 AM

Why would a parliamentary system have prevented us from helping the Russians win World War 2?

# posted by

Bartbuster : 4:32 PM

My original point about WWII was that our involvement in and impact on the outcome of the war might have been different if we had a parliamentary system. Let me emphasize the word “might.” My reference was primarily to the fact that non-intervention was the popular position in Congress, which tried to keep us strictly neutral, while Roosevelt used the power of his office to provide immediate support for the Allies, to build public support for intervention in Europe and to prepare generally for war.

Breaking down this point (which I didn’t expect to be so controversial), the first question would be whether Roosevelt would have been constrained to act differently had he been a prime minister, rather than a president. Since a large part of Professor Levinson’s critique of the Constitution is based on the view that the president has enormous and virtually unconstrained powers in the areas of foreign policy and national security, it seems to me fair to say, at least for these purposes, that the answer must be yes.

The second question would be whether these additional constraints might have had a material impact on the outcome of the war. Again, note the word “might.” This is a counterfactual and obviously involves speculation. Perhaps we would have been unable to provide sufficient support for Britain to allow it to hold out against Germany in 1940-41. Perhaps we would have been so neutral that we never would have entered the war in Europe at all (yes, I know Germany declared war on us first). Perhaps we would have formally entered the war, but focused all of our military resources on the Pacific. Perhaps we would have less prepared to wage war in Europe. We don’t know any of these things for sure, but I think that these are reasonable possibilities that should be considered if one wants to evaluate how a parliamentary system might have impacted our history.

As for the question of whether our involvement actually made a significant difference in the outcome of WWII, this strikes me as pretty silly. It is not a question of whether the US or the Soviet Union contributed “more” to winning the war. It is not even a question of whether the Soviet Union might have ultimately prevailed without our help. Had this happened, the nations of western Europe would have become Communist satellites, rather than parliamentary democracies.

All of this, of course, is peripheral to the main thrust of my comment, which was that Professor Levinson’s daily sniping at the Constitution does not, IMHO, make a persuasive case for fundamental constitutional change. The fact that something (arguably) bad happened and that it might not have happened if we had a different constitutional system doesn’t cut it for me. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes. Or so I’ve heard.

# posted by

mls : 11:08 PM

That there has always been an isolationist tendency in American politics is undeniable.

So far as Europe is concerned, it was given high authority in Washington's Farewell Address- 1796.

"The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith. Here let us stop. Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities.

Our detached and distant situation invites and enables us to pursue a different course. If we remain one people under an efficient government. the period is not far off when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lightly hazard the giving us provocation; when we may choose peace or war, as our interest, guided by justice, shall counsel.

Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice?"

The tradition was still strong under President Monroe in 1823:-

""In the wars of the European powers, in matters relating to themselves, we have never taken part, nor does it comport with our policy, so to do."

Even by the time of the 1st World War, (1914-1918), America did not intervene until 1917 and the influence of bodies like the America First Committee initially kept the USA out of the 2nd World War. The AFC opposed Leand-Lease and the Atlantic Charter and did not disband until Pearl Harbour.

Pat Buchanan and others still tout the principles of America First: - see this 2004 article: The Resurrection of America First where he argued:-

"For 20 years, Americans felt we had been had by the Brits and had been suckered into war "only to pull England's chestnuts out of the fire." This sentiment fueled the greatest of all anti-war movements in U.S. history, America First.

The achievements of that organization are monumental. By keeping America out of World War II until Hitler attacked Stalin in June of 1941, Soviet Russia, not America, bore the brunt of the fighting, bleeding and dying to defeat Nazi Germany. Thanks to America First, no nation suffered less in the world's worst war.

Pearl Harbor, which FDR cynically provoked after assuring Americans he was doing his best to keep us out of war, finished the America First movement. But, four years later, with victory won, America demanded that Truman "Bring the Boys Home."

It is certainly true that the USA was the only nation to emerge from WW2 with its economy intact and not having had any great city devastated by carpet or atomic bombing like London, Berlin, Dresden, Hamburg, Hiroshima and Nagasaki. But there was great heroism on the part of the American military and America avoided the mistakes of Versailles with its great generosity in post war reconstruction.

Tragic, really that Buchanan made no reference in his article to the 60th Anniversary of the D-Day Landing in Normandy which had taken place just months before his article:-

The World War II Normandy American Cemetery and Memorial is situated on a cliff overlooking Omaha Beach and the English Channel in Colleville-sur Mer, France. The cemetery is at the north end of its one half mile access road and covers one hundred and seventy two acres. It contains the graves of 9,386 American military Dead, most of whom gave their lives during the landings and ensuing operations of World War II. On the walls of the semicircular garden on the east side of the memorial are inscribed the names of 1,557 American Missing who gave their lives in the service of their country, but whose remains were not located or identified.

In his address at Coalville-sur-Mer, President Chirac said this:-

" D-Day veterans, Mr. President of the United States, Ladies and Gentlemen,

We stand here in hallowed ground, in a place that will live for ever in our memory for the role it has played in our history. Against the dark night of oblivion, we are gathered here today to pay homage to the Soldiers of Freedom, to the legendary heroes of Operation Overlord. Against the swift passage of time, our presence together today is a reminder to younger generations of the true significance of a war that continues to shape our understanding of the world.

France will never forget. It will never forget that 6th of June 1944, the day hope was reborn. It will never forget those men who made the supreme sacrifice to liberate our soil, our native land, our continent, from the yoke of Nazi barbarity and its murderous folly. Nor will it ever forget its debt to America, its everlasting friend, and to its Allies, all of them, thanks to whom Europe, reunited at last, now lives in peace, freedom, and democracy. Sixty years ago, the fate of France, of Europe, and the world, was decided on these Normandy beaches, here on Omaha Beach, on Bloody Omaha.

Today, as we stand in respectful silence, our emotion is undimmed at the spectacle of these rows of crosses, where your companions, your brothers in arms fallen on the field of honor now rest for all eternity. Our hearts are heavy as we contemplate their courage, their abnegation and their generosity. Our spirit is uplifted by the supreme abnegation of these young men who offered up their lives to save the world. In the name of every French man and woman, I want to express my nation's eternal gratitude and the unparalleled debt our democracies owe them.

I salute their courage, that flight of the human soul which, by their refusal to acknowledge the inevitability of enslavement, altered the course of History and so conferred a new stature on mankind, nations, and peoples. I salute the memory and the sacrifice of all these fighters. Overcoming fear, their fears, by the rightness of their struggle and the strength of their ideal, they raised the human conscience to a higher plane.

Mr. President of the United States, This day of remembrance begins here, at Colleville-sur-Mer, in this cemetery where for all time America honors its sons who died so young in the name of freedom. They are now our sons also. To the entire American nation sharing this solemn moment with us, to all those men and women who paid the ultimate tribute of those heroic days, the message of France is a message of friendship and brotherhood; a message of appreciation and gratitude.

For more than 200 years, the same humanist values have shaped the destinies of France and America. Our two nations have never ceased to share a common love of liberty and law, of justice and democracy. These values are rooted in the very depths of our cultures and civilization. They form the genius of our peoples, the heart and soul of our nations. From the plains of Yorktown to the beaches of Normandy, in the suffering of those global conflicts that have rent the past century, our two countries, our two peoples, have stood shoulder to shoulder in the brotherhood of spilled blood, in defense of a certain conception of mankind, a certain vision of the world: the vision that lies at the heart of the United Nations Charter.

Having experienced the long ordeal of war and occupation, France knows full well how much it owes to the United States of America, to the commitment of President Roosevelt and to the leadership of General Eisenhower. Each of us, every French family, cherishes the memory of those moments of joy that followed the D-Day Landings.

This friendship remains intact to this day: confident, exigent, founded in mutual respect. America is our eternal ally, and that alliance and solidarity are all the stronger for having been forged in those terrible hours. And in America s time of trial, when barbarity wreaks death and destruction in America and elsewhere in the world, France stands foursquare alongside every man and woman in America, as in the tragedy of September 11, 2001, a date engraved for ever in our memories and hearts. Their grief is our grief. In conferring the Cross of Chevalier in the Order of the Legion of Honor this morning on one hundred American veterans here today, I wanted, in the name of every French man and woman, to bear witness once more to this ancient friendship and to our gratitude.

Ladies and Gentlemen,

This moment of remembrance is also a moment for words of peace. For the glorious combat of these men to whom we are paying homage places us under an obligation for the future, and imposes a duty on us for the present. Sixty years ago, these Soldiers of Freedom took up arms to ensure the triumph of the values to which men and women everywhere aspire: a vision of humanity and human dignity, of peace, freedom, and democracy. But there is no end to this struggle of man against himself.

In a dangerous world, where violence and hatred too often stir up men, peoples even, the message of these heroes of The Longest Day, the flame our fathers bore so proudly and have now bequeathed to us, are our common heritage which implies a corresponding duty for us. It implies a duty of remembrance, a duty to recall this still recent past when fanaticism, the rejection of those who are different from us, the rejection of others, cast men, women and children into the night and fog of the death camps. We must never forget that without a compass, without fidelity to the lessons of History, there can be no future. We have a duty of vigilance also, a duty to fight ruthlessly all these upsurges and seedbeds of hatred that feed on ignorance, obscurantism, and intolerance. And we have a duty of fidelity to our values, so that our generation may build and pass on to our children a world of progress and freedom, as is their birthright. To build that society of respect and dialogue, of tolerance, and solidarity that was the very essence of the struggle we are commemorating today. To keep alive for all time the spirit of hope."

I felt it important to cite that speech in its full text, because it does encapsulate how Europeans of my generation and the one before feel about the sacrifice and generosity of the United States of America, encapsulated in the names Eisenhower, Roosevelt and Marshall.

Funny, that the Buchanan article should say nothing about Eisenhower's commitment to the Atlantic Charter and the United Nations.

We Brits also have a sense of history: Bayeux is the largest British WWII cemetery in France. It stands on the site of a temporary cemetery, which was set up near a military hospital shortly after the town was liberated on June 7th 1944. It holds not only the remains of 3,935 British soldiers but also those of 181 Canadians, 17 Australians, 8 New Zealanders, 1 South African, 25 Poles, 3 Frenchmen, 2 Czechs, 2 Italians, 7 Russians and 466 Germans, as well as one unidentified body. On the other side of the ring road, a memorial bears the names of 1,808 Commonwealth soldiers with no known grave. The inscription over the main entrance reads: "Nos A Guileimo Victi Victoris Patriam Liberavimus" - "We who were conquered by William have liberated the homeland of our conqueror".

The end of the Buchanan article is significant:-

"Now, with the mess in Iraq and the cost of nation-building rising in blood and treasure, America is looking for a foreign policy that defends the nation, but does not entail utopian schemes for remaking the world in America's image. Either the party that wins in November gives us such a policy, or it will be thrown out of office in 2008. Rely upon it. America First is back."

Well, it is certainly true that the Bush Administration has been contemptuous of the interests of all other nations other than those of America as he saw them which in effect means how his advisers in the Cheney-Rumsfeld Axis saw those interests. But it has been thrown out of office in 2008. And I noted with some hopefulness that in President-elect Obama's remarks on Monday, this phrase:-

"Susan knows that the global challenges we face demand global institutions that work. She shares my belief that the UN is an indispensable -- and imperfect -- forum. She will carry the message that our commitment to multilateral action must be coupled with a commitment to reform. We need the UN to be more effective as a venue for collective action -- against terror and proliferation; climate change and genocide; poverty and disease."

A nicely calibrated commitment. America First is out and, hopefully Multilateralism is back. The times we live in demand that the USA lead the community of nations, and lead so far as possible by consensus - as Primus inter Pares.

# posted by

Mourad : 6:09 AM

Buchanan's "America First" probably would undo the benefits of globalization in this interdependent world. Continuing George W's version of America First expressed in his 2002 National Security Strategy - "We're No. 1 militarily, economically and politically, and we'll do whatever its takes to stay No. 1" - has not proven to be sustainable in this age of multilateralism. America's influence can remain strong and influential, however, with the proper leadership.

Mourad, good comment.

# posted by

Shag from Brookline : 9:18 AM